House building company want to build a road through my right of way...... advice

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    House building company want to build a road through my right of way...... advice

    good evening folks, just after your thoughts on the below before more than likely seeking professional legal advice...

    A large UK based house building company own land behind my house and that of my neighbours that they want to develop with approx 90 houses. They have tried twice before for planning permission but were turned down on both occasions predominantly due to the access location.The land they own has no viable access at the minute and is as such 'land locked'.

    They now propose to buy the two neighbouring properties to me that sit on a private driveway along with my property and one other. The 2 properties are in the middle of the four houses that all sit in a straight line on the drive way that has access at each end onto a main A road that the drive runs parallel with.

    The 2 neighbours have agreed in principle a cash figure for the builders to buy and demolish their houses to gain access to the land they own ( this is where the proposed entrance road to the development will go) - in my opinion they have sold their-selves short with regards price agreed. The builders did initially approach us with regards to potentially also purchasing our property to demolish it and add to the frontage of the proposed development but then decided they no longer required it. The offer they made was unacceptable as it happens.

    So...... i have in my deeds a right of way along the drive way, all registered with the land registry etc.. ( both on foot and vehicular and for whatever reason) that runs across the two neighbouring properties where they want to put the road in. Basically meaning that i can access and exit my property/driveway at either end if i so wish. The 2 neighbours also have right of way across my land so that they can also access and exit their property/driveway.

    If this road was to be built, i would no longer have the right of way that i use on a daily basis, both on foot and by car.

    The builders have contacted me numerous times regarding the right of way with regards to me relinquishing it and removing it from the deeds etc... I have declined on each occasion. they have now offered me £25000 to give the right of way up. I informed them that this was no where near enough and declined again. They said they would get back to me on this.

    In and amongst this they have made veiled threats that they can take out insurance and can just build the road through anyway...this is where i have no knowledge and takes a slight edge off my 'playing hardball' tactics.

    To throw another spanner in the works they have also said that they are now interested in purchasing my property (again) but have offered a laughable cash offer for it, bearing in mind the land manager of the company knows exactly what i will take to sell up...

    Any thoughts and advice on the right of way issue and where i might stand would be greatly appreciated as i feel i'm up against the big school bully !!

    regards, Ian and family.

    #2
    Indemnity insurance is generally void if the person who could enforce the right is aware it is being breached.

    Comment


      #3
      Originally posted by leaseholder64 View Post
      Indemnity insurance is generally void if the person who could enforce the right is aware it is being breached.
      Does this mean i am the one that can enforce the right and that obviously i would know it is being breached - apologies if it's a daft question !!??

      Comment


        #4
        Yes. Indemnity insurance is for when it is unlikely that the person with the right will ever exercise it, which generally means that they either don't know it is being breached or don't know they had the right, and that is very unlikely to change.

        More of a concern would be whether the courts would compensate you by more than £25k or be prepared to issue an injunction. Generally courts prefer cash solutions.

        Comment


          #5
          Originally posted by leaseholder64 View Post
          Yes. Indemnity insurance is for when it is unlikely that the person with the right will ever exercise it, which generally means that they either don't know it is being breached or don't know they had the right, and that is very unlikely to change.

          More of a concern would be whether the courts would compensate you by more than £25k or be prepared to issue an injunction. Generally courts prefer cash solutions.
          Thank you for clearing that up.....they clearly are willing to offer more as he asked me to give him a figure but i informed him that he should get back to me with another offer over £25 K. The money isn't the real issue here...if I've never had it then i won't miss it....I'd rather they just didn't build !!

          Comment


            #6
            Originally posted by k9forces View Post
            If this road was to be built, i would no longer have the right of way that i use on a daily basis, both on foot and by car.
            Am I missing something here?

            How would this new road impact on your right of way? Surely you would still be able to use/cross it at will?

            Unless they build a boundary (wall) cutting off access to the existing driveway then your existing access would seem to be unaffected.

            Comment


              #7
              I am also having a bit of difficulty seeing how the road impacts. However, if the builder is wiliing to pay to get a release of the right of way I think we can safely assume it does.

              In and amongst this they have made veiled threats that they can take out insurance and can just build the road through anyway...this is where i have no knowledge and takes a slight edge off my 'playing hardball' tactics.
              They cannot (at least not without failing to disclose material facts to the insurer) get indemnity insurance if someone is asserting their rights. Even if they do get insurance that does not stop you asserting your rights.

              It is dangerous to carry out building works which impact on someone's rights and assume that the court will award damages rather than grant an injunction. The principles involved in whether to grant an injunction or award damages were set out in Regan v Paul Properties and others:

              (1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant's legal right.
              (2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant's rights on payment of damages assessed by the court.
              (3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is "a tribunal for legalising wrongful acts" by a defendant, who is able and willing to pay damages.
              (4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right "except under very exceptional circumstances."
              (5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant's legal rights was small; whether the injury could be estimated in money; whether it could be adequately compensated by a small money payment; whether it would be oppressive to the defendant to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction.



              A full report may be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1391.html and a summary here: https://swarb.co.uk/regan-v-paul-pro...a-26-oct-2006/

              A defendant who rides rough shod over a claimant's rights in the teeth of clearly expressed opposition or tries to steal a march on the claimant, for example by doing work while he is away, is likely to get short shrift from the court.

              Comment


                #8
                Hi..the proposed road would cut through the drive ..therefore I would no longer be able to walk or drive along it as there would be grass banking either side of the road and pavements aswell..along with new boundary walls and or fencing ..plus the road would be lower down than the existing driveway as they would have to excavate so that it could link in with the main A road that runs parallel to the driveway ..

                Comment


                  #9
                  Originally posted by k9forces View Post
                  there would be grass banking either side of the road and pavements aswell..along with new boundary walls and or fencing ..plus the road would be lower down than the existing driveway as they would have to excavate so that it could link in with the main
                  That explains the impact then, you hadn't mentioned that the 'driveway' loop was at a higher level than the parallel main road.

                  However the impact would be minimised by the fact that you would still have access from one end of the driveway, just no longer from both ends.

                  So you are haggling about how much that slight loss of amenity is worth.
                  You agree a figure that is acceptable to you both.
                  Or you oppose their planning application, and threaten to sue them for loss of amenity if they get planning premission anyway.

                  Edit - TBH If it did go that far then I don't see a court awarding you much at all. The company knows this and have made their offer accordingly.

                  Comment


                    #10
                    Personally last thing I would want is that access road in basically your back garden, 90 houses that's probably 180 cars a day back and forward in your back garden/drive. Would think about moving or just say no, they will have to find another way. You now also have them in a position where this 90 property development cant go ahead without you so guessing them will pay more than house is worth in end. Happened to dads friend land of no value, had storage for cars and where he repaired them as a hobby for over 10 years. First offer 10k eventually settles for 200k as estate would have looked horrendous with it still there and needed it for the obvious entrance into estate, rather than weird one they had to do without this bit of land

                    Comment


                      #11
                      If you really don't want the money, I would get someone who knows planning law to help you object to the application in the strongest possible terms.

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                        #12
                        Not overly bothered about the money, it's the building bit that bothers me and the fact that they want to build across the right of way.On a plus side I've just found out that my work insurance policy offers free legal expenses and solicitors fees for various matters including the situation I find myself in now.

                        Comment


                          #13
                          Originally posted by nukecad View Post
                          So you are haggling about how much that slight loss of amenity is worth
                          It is not about how much the loss of amenity is worth to k9forces, but how much the release is worth to the developer.

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                            #14
                            Originally posted by Lawcruncher View Post

                            It is not about how much the loss of amenity is worth to k9forces, but how much the release is worth to the developer.
                            Nail on the head there Lawcruncher!...and also boils down to can they just build the road and basically ignore the right of way that I have !

                            Comment


                              #15
                              Originally posted by Lawcruncher View Post
                              It is not about how much the loss of amenity is worth to k9forces, but how much the release is worth to the developer.
                              Indeed, that was my meaning. (Maybe I should have added "to each party" at the end of that sentence).

                              The relative worth to each party is what needs to be negotiated.

                              If k9forces believes that he can stop the whole project over this issue, (which it seems is what he wants), then he believes it has to be worth a lot to the building company.

                              The building company may not see it the same way, and may even think that if they do unilaterally block part of his right of way any penalty imposed by a court may not be that great because he still has access from the other end of the drive.

                              If things as far as court then both parties are gambling on just how harshly the judge would view any breach of k9forces right of way.

                              Originally posted by k9forces View Post
                              Nail on the head there Lawcruncher!...and also boils down to can they just build the road and basically ignore the right of way that I have !
                              Ultimately yes, if they did then you would have to take them to court for blocking your right of way, just like any other case where a right of way has been blocked.

                              People ignore the law (civil law and criminal law) all the time, they then get taken to court.

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